유전자감식 증거의 증거능력

초록

DNA typing is suggesting a new standard for the admissibility and probative power of scientific evidence, whose importance is increasing in criminal proceedings. However, its criteria for judgment is not clear yet. Most of the studies on the evidence from DNA typing have adopted the Frye standard or the Daubert standard presented in the United States. The precedents also appear to be applying those standards to their judgments. However, there is a difference between the criminal process of our nation and that of the United States, which raises a question of whether these standards can be applied as the same in both legal systems. In addition, the continuous development of genetic technology may require a modification of the application of these standards or the standards themselves. In this context, the authors proceeded with a discussion about the admissibility of the evidence from DNA typing. DNA typing is a relatively recent development of scientific methods and is still developing and changing very rapidly. The legal discussions should consider these characteristics thoroughly. Scientific judgments are not usually divided into ‘yes’ or ‘no’, but are presented in consecutive numbers by probabilistic analysis. On the other hand, legal judgments are bound to the choices of either ‘yes’ or ‘no’, which serves as a limitation in the adaptation of scientific results. The jurist should determine how to reflect the stochastic figures of the DNA typing result to a legal judgment, while the scientists should generate accurate and reliable results. To make a reasonable judgment, a precise comprehension of the probabilistic result from DNA typing and a normative judgment based on this understanding are required. Unless the normative judgments are rhetorical expressions to justify one's views without providing evidence, the jurists should accurately understand the scientific facts subject to normative judgments and set clear criteria for them.

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